Thursday, August 27, 2009

Until 1913, governors did not fill Senatorial vacancies. The reason is simple: senators were appointed by state legislatures. If one died or resigned, the state legislature of the appropriate state just appointed another. When the direct election of senators was enacted by the 17th amendment, they added a clause to call for special elections in the event of a vacancy. But it was worded thus, "When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct."

When there is a vacancy in the House of Representatives, the seat is simply vacant until a special election is held, usually filling the seat in three to six months. It seems almost certain that the drafters of the 17th amendment wanted to have the same model, except that Article V presents a problem. Article V contains an "unamendable" provision stating that no amendment shall deprive any state of its "equal suffrage in the Senate without its consent." So the Constitution could not be altered to leave a state vacant for any period of time without the state's affirmative consent. Thus they added a clause that a state legislature could (but did not have to) authorize the governor to make temporary appointments pending the special election. It was surely not anticipated that most states would adopt a rule providing for the governor to make temporary appointments to last for up to two years so that the special election would coincide with the regular biennial election of representatives. Yet that is what happened. The point of this commentary is to make it clear that the expectation that vacant senate seats will be filled by governor's appointments was not part of the plan of the orginal framers nor of the framers of the 17th amendment. It just happened, in the same way so many things in our constitutional system have just happened (e.g., the committee hearings on Supreme Court and cabinet nominations, the filibuster, the fact that presidents do not consult with the Senate beforehand in making treaties despite the constitutional provision that the Senate give "advice" on treaties as well as "consent", the ascension of the Vice President to the office of President before the 25th amendment was adopted in 1967, the "sovereign immunity" of states under the 11th amendment, and there are more). When there are clear ill effects to these non-constitutional traditions, it is time to change them. Plainly, there is a democratic deficit that emerges when - for example, today - there are going to be 5 appointed Senators and 5 who were appointed and won election as an "incumbent." Not to mention the Blagojevich-Burris fiasco in Illinois.

It is also very disturbing to see states monkey with the rules for partisan advantage. When Senator Frank Murkowski became governor of Alaska, the Republican legislature arranged for him to be able to appoint his replacement to his then-vacant seat. They did this to circumvent having the then-Democratic governor Knowles from making the appointment. The one-time-only rule was that the seat had to be vacant for 5 days before making an appointment, which was all the time necessary for Murkowski to ascend and appoint his daughter, who still serves. Similarly, in 2004, the Massachusetts legislature adopted its current rule, preventing temporary appointments at all while awaiting a special election, because Mitt Romney (R) was then governor, and the Masachusetts Democrats wanted to prevent him from seating someone to replace Senator Kerry if he won the presidency. Now they want to change the rules again for Kennedy's seat. Were it not also a much more sensible rule to have some temporary appointment (given that every other state makes temporary appointments), it would be incredibly crass to change the rules again. As it is, it just kind of crass.

Wyoming has a more sensible rule that the party of the deceased or resigned senator nominates three names to the governor, who then chooses one. Another possibility for reform is for each state to adopt rules similar to that which Massachusetts may be set to adopt: providing for a special election within 180 days, and for temporary appointments by the governor during that 180 day period. Another possibility, advanced by Senator Feingold (D-WI) is to pass a new constitutional amendment requiring special elections (with or without temporary appointments as states choose) within 180 days.

I think Feingold is on the right track. We need to have special elections in this country for Senatorial vacancies. It undermines the very purpose of the 17th amendment - to have senators directly responsible to the people rather than to state officials - for us to continue as we have been doing. At least the Wyoming rule prevents the worst scenario: a change in parties due to the death of a senator totally undoing the people's choice.

22 comments:

The senate is an interesting body and I like the idea of the senate but it does need a fix of some kind. It seems to me to be a speed bump only, of late, just a house full of bickering old hens.

One glaring problem I see is the committee system in the senate. Grassley is a good example of disproportionate power...a state with 7 electoral votes. The rub for me is this when it comes to committees that confer on big national issues, like health care, it seems un-democratic to allow the Constituents of a minority state hold up a bill that 77% of Americans say they want...(without being specific I realize, the last poll I saw a week ago, showed 77% want health care reform generally), this doesn't seem democratic. Now if I lived in Iowa and was against it, I would surely be glad my voice was being heard, so if it were a different issue that I was against, I may be looking at my own hypocrisy . Is the solution to have more than two senators per state that have larger populations and therefore, need greater representation? I know that is what the House is for, but the two bodies so often disagree on legislation...a checks and balance trigger that I like, but I now find myself at odds with. Help!

My current fave suggestion is to change the rule from 60% of all senators duly sworn to 60% of all senators present and voting, and allow cloture votes on 12 hours' notice. That simple change would require all 40 filibusterers to come to the floor for each cloture vote, whereas now only the affirmative (cloture side) must come to get the 60. Also, the 12 hours rule would allow votes at least twice a day.

RbR... Yes, you have certainly been the strongest supporter of common redistricting practices. But if I recall correctly, LTG was also generally supportive--it was just in the case of California that he felt it had gone a bit too far.

Anyway, I guess I am not sure what is so particularly "crass" about the legislature changing the law regarding the appointment of Senators to ensure representation for their party. It seems consistent with how business is done in state politics, no?

I am a supporter of *legislative* redistricting. I want an open process, not secretive "citizens panels" or a judiciary. But that does not mean I approve of gerrymandering. I don't. I would enact rules about keeping political entities (cities, counties) intact as much as possible and permit a stronger judicial check on gerrymandering.

In a sense we don't disagree, Dr.S. State politics can be very crass. But it undermines the rule of law when Tom Delay engineers redistricting in Texas in a non-census year just because the legislature changed hands, or when we rejigger Senate election rules to benefit the ruling party, or for partisan reasons. I think we can agree that is a bad idea even if we agree it may also happen commonly in state politics. As I said, the reason for supporting the reform in Massachusetts to allow interim appointment is that it is really stupid not to have an interim appointment when that's the norm.

Dr. S. I would also like to clarify my position on redistricting. I don't support the status quo without qualification. I just vehemently oppose the alternatives you most often propose - namely panels of judges or other supposedly "objective" or "non-partisan" decision-makers.

I really like the way Iowa does it. They have a separate panel made up of exactly 50% Democrats and 50% Republicans and that panel draws up the district boundaries. If you take a look at the Congressional boundaries of Iowa's districts (yes, there's more than one) as compared to California, you'll see shapes that are more pleasing to the eye.

The Supreme Court has ruled term limits unconstitutional for federal offices on the theory that the requirements for officeholding are coterminous with those found in the constitution. I doubt additional requirements could be imposed on the Senators, therefore. However, there is nothing that prevents a politician from securing a public promise not to run. Particularly if the appointment is for less than 6 months, that promise should be sufficient to accomplish the task.

Iowa doesn't face the gerrymandering problems that larger states do. There's simply not that much to muck around with. So the greater "success" there must be viewed carefully. I would like to see whether Iowa's gerrymandering really changed a whole lot when the current system was imposed. CA has ten times as many districts, meaning that its problem is literally an order of magnitude more complex.

"Iowa doesn't face the gerrymandering problems that larger states do."

Please explain the logic there. Iowa has areas of the state where Democratic or Republican voters are geographically concentrated. Isn't that all you need to have gerrymandering? Well, that and more than one district.

Certainly gerrymandering in a state with 20, 30 or 40 districts will matter more than in a state with 5 but isn't the underlying problem the same? Why does size matter here?

There's only so much gameplaying you can do in Iowa, where the result is probably going to be 3D/2R or 2D/3R in terms of "natural bias." District borders are likely to be relatively stable and there can be good connections between reps and their communities. In other words, you're going to see a relatively small set of potential maps no matter who is drawing them.

If gerrymandering were to alter a state delegation from 3Dem/2Rep to 2Dem/3Rep, that would be a massive shift on a percentage basis. Imagine the hue and cry if the Democratic party were to lose a third of their seats due to unfavorable redistricting! In relative terms, gerrymandering in a small state could easily be proportionately more significant than in a large state. In absolute terms, of course, clever gerrymandering in a larger state could switch more seats--and that would have a larger effect on Congress as a whole.

If we are concerned about effect on the overall balance in the House of Representatives, then I see your point, LTG. But if we are concerned about the effect on representation from the voters' perspective, then I wonder if there isn't more difference between a state with 2 districts and a state with 5 districts than there is between a state with 5 and a state with 20 or 30 districts. I haven't done any math on this so don't hold me to that. But off the top of my head, it seems to me that you can't gerrymander a state with a single district (obviously, right?). And when you have 2 districts, there is not much you can do so long as you require the districts be geographically unitary (no islands). But once you get up to 5 districts you can really go to town with this if you want to.

I just wonder if you don't get diminishing returns to gerrymandering so to speak as you increase the number of districts being gerrymandered.

Dr.S. is right that a shift of one seat is a big percentage shift when there are only five. But a single seat is also the quantum of legislative representation. So it's also the smallest possible shift you can measure.

Look, what I'm trying to say is that you can mince and dice the population of California into 53 districts with more "creativity" than you could into 5 districts without violating the "compact and contiguous" principle or running afoul of the Voting Rights Act (which doesn't strictly apply to Iowa, but would be the yardstick). That's probably the issue that eliminates a lot of the mathematicall possibilities.

The other thing is that a voter in CA can move in out of of legislative districts of all different kinds without moving - in Iowa, you are likely to just move across a single line, or not. I've seen the shenanigans in CA up close and personal. At one point, as I have relayed to some of you, I voted in two US congressional districts in the same year from the very same polling place. You just don't have the option in Iowa of putting all of Dubuque into one Congressional District or splitting it between half a dozen.

Take a look at small/midsize state districting. It all looks the same: a few urban districts and a couple big rural ones. Gerrymandering is about suburbs, not about slicing and dicing cities.

But you implied that any beneficial consequences of the Iowa plan were entirely due to the small number of districts. I have not seen any detailed argument about WHY size should matter - other than more seats means bigger impact on the legislature in question.

You say there are more opportunities for fiddling with 53 districts. OK. But can you show that increasing district number increases fiddle potential at a steady or increasing rate? I suspect that once you get above 3 districts or so (depending on the complexity of the geographical distribution of the voters), the potential fiddles and combinations of fiddles are so huge that in practice there is little difference between 5 and 50 districts.

My point is that you are incorrect to so casually dismiss Iowa's board as being meaningless when the number of districts is controlled for.

As RbR says, the "complexity of the geographical distribution of voters" is the key here. If likely Republican and Democratic voters were uniformly distributed throughout a state, gerrymandering would be impossible. If we assume that the geographical variability is approximately the same... Then I have been pondering this and I think I was wrong above: size does not matter much here.

I believe you have it right, RbR. Once you get above 3 districts or so--once you leave the "quantum" level LTG names so nicely--then the resulting percentage change one can achieve by to gerrymandering is probably the same for Iowa or California or anywhere in between.

"But you implied that any beneficial consequences of the Iowa plan were entirely due to the small number of districts."

No, no, no. I meant that the small number of districts means that it probably doesn't matter too much WHAT redistricting plan Iowa has.

http://nationalatlas.gov/natlas/Natlasstart.asp

Check out the districts of smaller states with those of larger ones and see where all the weird curlicues are. Look at how messed up Illinois looks compared to Iowa, Minnesota, or Wisconsin. I think the available # of districts makes the drawing of funkier lines possible.

By the way, I am wrong about one thing. The smallest possible amount of legislative representation you can have is a unit of representation I call the "Eleanor Holmes Norton." It is a legislative neutrino.

"By the way, I am wrong about one thing. The smallest possible amount of legislative representation you can have is a unit of representation I call the "Eleanor Holmes Norton." It is a legislative neutrino."